GENERAL PROTECTIONS & ADVERSE ACTIONS
What to do when an employee takes Retaliatory Action
Information on General Protections & Adverse Actions
On this page
Adverse action is often described as “retaliatory” conduct that is taken in response to something done or said by an employee, or that the employee has exercised a “workplace right”. It is important to note that the general protections provisions (the protections) are not limited to employees and are protections that are extended to contractors.
The risk to employers of Adverse Action and General Protections claims are:
- the legal costs of defending the claim;
- disruption to business through defending the claim; and
- exposure to reputational damage.
Unlike unfair dismissal claims, a claimant has the opportunity to pursue their claim through either the Federal Circuit & Family Court of Australia or the Federal Court of Australia. Unlike the Fair Work Commission, the rules of the Federal Circuit & Family Court of Australia or the Federal Court of Australia require that a corporation be represented by a lawyer.
Should an applicant prevail in their claim it is open to either the Federal Circuit & Family Court of Australia or the Federal Court of Australia to order compensation, which unlike an unfair dismissal claim in the Fair Work Commission, is not capped. In addition to orders that an applicant can be compensated for their financial loss it is also open for a court to award general damages, that include compensation for loss of opportunity or hurt and distress. It is also open for the court to make declarations that the employer has contravened a civil remedy provision of the Fair Work Act and to impose “pecuniary penalties” for those contraventions.
What is a Workplace Right?
The most common example of the exercise of a workplace right is a complaint or inquiry made by an employee. There is some uncertainty as to what type of complaints or inquiries attract the protections.
There is no dispute, however, that for the inquiry or complaint to be afforded the protections, it must:
- have been genuinely made;
- have been made in good faith; and
- not have been made for an ulterior purpose;
These requirements distinguish what otherwise might be described as informally made grievances. For a complaint to attract the protections it does not have to comply with rules around formality or a Grievance or Complaints procedure. A complaint or inquiry that attracts the protections can either be oral or in writing.
What does it mean to be in “relation to their employment.”
The current controversy is around what it means to be a complaint or inquiry “in relation” to their employment. Initially, it was interpreted to mean that the complaint or inquiry had to be “underpinned” by a workplace law or workplace Instrument. More recent decisions have extended the meaning of “in relation” to go beyond workplace laws or workplace instruments to include complaints to do and about employment contracts and an employee’s common law right the complain that an employer is in breach of the employment contract.
What is certain, is that presently, a complaint or inquiry that has at its source an entitlement under workplace law or workplace instrument is without question a complaint or inquiry that is covered by the protections.
How should I react to a Complaint?
Particular care ought to be taken in response to a complaint made by an employee that they are not being paid or receiving the benefits that they are entitled to under a modern award or enterprise agreement. It is equally important to be aware that the employee may be mistaken in their expression, but are nonetheless covered by the protections. What invokes the protection isn’t that the complainant or inquirer if factually or legally accurate, it is the exercise of the workplace right that attracts the protection.
It is often the temptation to categorize a complainant or overly inquisitive employee as a troublemaker and what follows is a course of conduct intended to remove the troublemaker from the business. This why general protections is often described as “retributive conduct.”
Act Quickly
Workplace Law is time-sensitive. Submissions subject to strict time limitations.
Contact Us Today for a FREE Consultation with an Employment Attorney.
How does an employee exercise a workplace right?
An employee exercises a workplace right when they either receive, derive or do something consistent with the benefit that they are entitled to under a workplace law or workplace instrument.
For example, an employee receives the benefit of the National Employment Standard when they:
- make an application to take annual leave;
- are absent from work on annual leave;
- are absent from work due to illness;
- are absent from work to care for an ill child.
An employee whose employment is covered by a Modern Award is entitled to be paid no less than the minimum hourly rate prescribed by the Award. An employees entitlement to be paid an hourly rate no less than the Award minimum rate of pay is a workplace right. An employees entitlement to be paid penalty rates and overtime rates no less than those prescribed by the applicable modern Award is a workplace right.
Workplace Rights can be exercised by:
- by initiating an application with the Fair Work Commission for order to stop bullying or to stop sexual harassment;
- an employee participating in industrial activities;
- an employee who asks for a copy of a payslip;
- an employee makes an oral inquiry about their rate of pay;
- an employee makes a complaint about an unsafe work practice;
- an employee refuses to perform a task that exposes the employee to risk of injury.
What are the National Employment Standards?
The first place to start understanding workplace law is by referencing what are referred to as the “National Employment Standards.” The National Employment Standards are laws in that they are express provisions of the Fair Work Act that provide a “safety net” of minimum entitlements. Therefore a contravention of a National Employment Standard takes on greater significance.
An eligible employee has a workplace right because they have entitlement to the National Employment Standards which exist under a workplace law, being the Fair Work Act.
Eligible employees have workplace rights under the National Employment Standards because they have:
- an entitlement to not work in excess of 38 hours a week;
- an entitlement to refuse a request to work on a public holiday;
- an entitlement to request flexible work arrangement;
- an entitlement to be offered conversion from casual employment to full time or part time;
- an entitlement unpaid parental leave;
- an entitlement annual leave;
- an entitlement personal leave or personal carers leave;
- an entitlement compassionate leave;
- an entitlement paid domestic violence leave;
- an entitlement community service leave;
- an entitlement to long service leave;
- an entitlement to be given notice of termination;
- an entitlement to redundancy pay;
- an entitlement to be given a Fair Work Information Statement.
What’s the significance of each entitlement?
Once an employee has an entitlement to a benefit under a workplace law or to initiate or participate in a process under a workplace law the employee will have a “workplace right”. The protection is invoked in circumstances where the employee exercises the workplace right.
An employer cannot take adverse action against the employee:
- because they the employee has the workplace right;
- exercises the workplace right;
- proposes to exercise the workplace right;
- to prevent the employee from exercising the workplace right.
Example 1 (Entitlement to Casual Conversion)
A casual employee is entitled to the benefit of casual employment. Because the entitlement to casual conversion is an entitlement under a workplace law, the causal employee cannot be subjected to adverse action:
- because they have the workplace right, that is the entitlement to casual conversion;
- because they exercise a workplace right by expressing to the employer a desire to be converted from casual to full time;
- to deter the employee from exercising their workplace right to casual conversion.
Example 2 (Entitlement to Long Service Leave)
An employee who has been continuously employed for a period of 9 years and 11 months is entitled to long service leave on the date of the 10 year anniversary of their start date.
The employee cannot be subjected to adverse action:
- because they have the workplace right, that is the entitlement to long service leave;
- because they exercise a workplace right by expressing to the employer a desire to take long service leave;
- to prevent the employee from exercising their workplace right to take long service leave.
Example 3 (Entitlement to the Benefit of Workers Compensation & Rehabilitation Act)
A worker who is injured at work has entitlement to the benefit of the Workers Compensation & Rehabilitation Act.
The employee cannot be subjected to adverse action:
- because they have the workplace right, that is the entitlement to apply for workers compensation;
- because the did they exercise a workplace right by applying for workers compensation;
- to prevent the employee from exercising their workplace to apply for workers compensation.
Example 3 (Entitlement to Refuse Work that is Unsafe)
An employee refuses to comply with a direction because to do so would expose the employee to risk of injury. The employee cannot be subjected to adverse action:
- because the employee has the workplace right, that is to refuse to comply with a direction that might expose the employee to risk of injury;
- because the employee did exercise the workplace right by refusing to comply with the direction that exposed to employee to risk of injury;
- to prevent the employee from exercising their workplace refuse to comply with a direction that might expose the employee to risk of injury.
What is a Workplace Law?
Examples of Workplace Laws include:
- the Fair Work Act;
- state Workers Compensation legislation, in Queensland the Workers Compensation & Rehabilitation Act;
- state Work Health & Safety Legislation, in Queensland the Work Health & Safety Act.
Examples of workplace rights under the Fair Work Act include:
- participating in industrial activities,
- attending onsite meetings conduct by Unions or industrial organisations;
- participation in enterprise bargaining;
- protected industrial action;
- dispute resolution procedures;
- an entitlement to make an inquiry or complaint in relation to an employees employment, that includes complaints about being bullied or harassed,
- speaking to and receiving advice from a lawyer;
- calling and receiving advice from the Fair Work Ombudsman;
- application made to the Fair Work Commission;
- for an order to Stop Bullying;
- for an order to Stop Sexual Harassment;
- the Fair Work Commission to conciliate a dispute under and Enterprise Agreement
Examples of workplace rights under the Queensland Industrial Relations Act:
- long service leave;
Examples of workplace rights under the Workers Compensation and Rehabilitation Act:
- for an eligible worker an entitlement to apply for workers compensation;
- for an eligible worker an entitlement to make a common law claim.
Examples of workplace rights under the Work Health & Safety Act:
- the right to refuse to perform work that is unsafe.
What is a process under the Fair Work Act?
In short there are many processes under the Fair Work Act which employees have an entitlement to participate in. Some are legal process under the Fair Work Act, such as an entitlement to make an Unfair Dismissal Application, a General Protection Application, an entitlement to seek and order to stop bullying or sexual harassment. Other processes are not legal in nature, they are Enterprise Bargaining processes and entitlements to participate bargaining processes, the right to appoint a bargaining representative.
Any employee that has an entitlement to or does initiate or participates in a process under a workplace law is covered by the protections, that is the employer cannot take adverse action against the employee because they initiated or participated in a process under a workplace law.
What is Adverse Action?
The most common form of adverse action is dismissal. However Adverse action can also include conduct that:
- prejudicially alters the employee’s employment, such as demotion to a lower position, reduced pay, reduced responsibilities and reduced hours;
- causes injury or damage to an employee’s employment such an adverse entry on the employees employment record that stifles their prospects of promotion;
- discriminates between the employee (the exerciser of the workplace right) and those employees who did not exercise a workplace right.
Adverse action also includes threats to take adverse action, for example, a threat to dismiss an employee in response to a request for a copy of their payslip.
A comprehensive approach to mitigating the risk of an adverse action claim ought to involve identifying:
- the workplace rights that are most likely to be exercised within a workplace;
- the decision makers within a workplace.
Adverse Action Case Study (Case Study – QANTAS vs TWU)
The protections under the Fair Work Act prohibit taking of adverse action to prevent an employee exercising a workplace right. In very brief summary, QANTAS made a decision to outsource it baggage handling services (the decision). The effect of which was baggage handling staff employed by Qantas were made redundant.
A unique feature of the general protection provisions is a change to what is called the evidential onus. The usual rule is that evidential onus or burden falls upon an applicant to prove all the elements of their cause of action, a defendant or respondent simply has to disprove the applicant’s case. In a general protections case once an applicant has established, that is lead evidence that persuades the court of the workplace right, the exercise of a workplace right and the adverse action the evidentiary onus then falls on the respondent, usually the person that made the decision to take the alleged adverse action, to give evidence as to the reason for the taking of the adverse action, most likely with the goal of persuading the court that the adverse action was not taken because the applicant had a workplace right, did exercise a workplace right or to prevent the employee from exercising a workplace right. This is what us typically described as the “reverse onus”.
In QANTAS -v- TWU it was alleged by the Transport Workers Union that the reason for the decision” was to prevent the baggage handlers participating in upcoming enterprise bargaining. An entitlement to participate in enterprise bargaining is an entitlement under the Fair Work Act and therefore a workplace right. An entitlement to take what is called “protected industrial action” effectively going on strike, is limited to enterprise bargaining. If employees are dissatisfied they are entitled to apply to the Fair Work Commission for an order that entitlements them to take protected industrial action.
The TWU argued that the reason for the decision and the timing of the decision was to prevent the baggage handlers from having the benefit of being able to participate in enterprise bargaining and exercising, should it have been necessary, a workplace right to apply for and take protected industrial action.
The judge at first instance, Justice Micheal Lee, was unpersuaded by the evidence given by the Qantas decision makers did not have in their contemplation the upcoming enterprise bargaining negotiations, once reached, would have entitled the baggage handlers to have taken protected industrial action.
Qantas argued that the protection, that is to prevent the taking protected industrial action, was not an entitlement, because the right did not come into effect until the Enterprise Agreement expired, that is it did not apply to future rights.
Justice Lee, the Full Bench of the Federal Court and the High Court disagreed with Qantas and found that for the protection to be invoked, the workplace right could be a future workplace right.
What does “operative” and “substantive” mean?
His Honor had no difficulty in accepting the vast volume of commercial evidence that Qantas relied upon in support of its decision. However, his Honour was not convinced that the commercial evidence was the only reason for the decision. His Honour was not persuaded by the Qantas decision maker that the decision and the timing of the decision was not influenced by the baggage handlers’ right to participate in enterprise bargaining.
For a reason to be an operative or substantive reason it need not be the only reason. That is for the TWU to prevail in its case it did not have to disprove that there were legitimate commercial reason for the decision.
What should I do next?
A comprehensive approach to mitigating the risk of an Adverse Action and General Protections claim ought to involve:
- written policies that identify;
- workplace rights that may be exercised in a workplace;
- how employees may exercise workplace rights;
- procedures for dealing with employees that exercise workplace rights;
- training in respect of identification of decision makers and circumstances within decision-makers could make decisions in response to an employee exercising a workplace right.
A concerted effort and willingness ought to be made to implement practices that do automatically result in the demise of troublemakers. That effort ought to also build in the possibility that the person who is recommending the adverse action being taken against the troublemaker is in fact acting upon a desire to effect retribution.
A good place to start for a decision maker, no matter whether the owner of a business or a senior manager of the business is prior to giving notice of the adverse action is to speak with employee in a safe environment and offer the employee certainty that they are free to express their views. Any investigation that has been initiated into allegations that the employee has engaged in conduct that may jeopardize their continued employment ought to also include an investigation into what they may constitute the exercise of a workplace right, be mindful of course that most employees will not use the term “workplace right” or know of its importance.
